Coronavirus (COVID-19) Pandemic – What it Means for Employers and Businesses
March 12, 2020
As the Coronavirus (COVID-19) continues to spread internationally and many U.S. states now have confirmed cases, it is increasingly important for employers to consider the impact the virus may have on the workplace and develop a response plan.One of the most challenging aspects of addressing an epidemic or pandemic is that all employers and workplaces are different and there is no easy, ‘one size fits all’ approach. Employers have drastically different operational models and workspaces and what may work for one company will not be effective for another. Employers must consider the size of their business, numbers of employees, work environment or workspace, type of work performed, and operational needs. Employers must also consider the many laws that are implicated by illness in and absences from the workplace, including the Americans with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), OSHA, and workers’ compensation laws.ADA ConsiderationsWhat Can Employers Do?Ask employees to use recommended hygiene practices while at work, such as washing hands frequently, covering coughs and sneezes with tissues or an arm, if a tissue is not available, and ensuring that employees properly dispose of tissues.https://www.cdc.gov/healthywater/hygiene/etiquette/coughing_sneezing.htmlEmployers can (and should) ask an employee who is ill to go home, regardless of whether or not the employee wishes to do so. Ask employees who are able to work from home to do so. Employees who cannot work from home can be required to use available sick time or PTO consistent with the employer’s leave policies and/or state sick leave laws.Ask employees returning to work following an illness to provide a doctor’s note certifying their fitness for duty.Contact the Centers for Disease Control and Prevention (“CDC”) and/or their local health department if they are notified that an employee has tested positive for the virus.If an employee has tested positive for the coronavirus, employers may tell other employees, clients or the public that they may have been exposed, without specifically identifying the employee who has been diagnosed.Take direction from the CDC or their local health department. Given the fast moving nature of the COVID-19 crisis and the continued spread throughout most states, employers may be asked, or required, to take new or different steps than those outlined here. If employers are uncertain about what steps to take, they should contact their local or state health department.What can you NOT do?You cannot take employees’ temperatures (unless ordered to do so by the CDC or other applicable public health agency).If an employee has been diagnosed with the virus, you cannot provide other employees, clients or the public with the name of the employee or otherwise share information about the specific employee’s medical condition.You cannot ask an employee if he or she has a compromised immune system or other chronic health condition that would make the employee more susceptible to illness. This is considered a disability-related medical inquiry under the ADA and is not permitted.FMLA ConsiderationsThe FMLA provides job protected leave for an employee’s own serious health condition or to care for specific family members with a serious health condition. Employees who have been diagnosed or have family members who have been diagnosed with the coronavirus would be entitled to FMLA leave (provided the employee is otherwise FMLA eligible).If an employer asks an employee who does not appear ill and/or has not been diagnosed with the virus to remain off work for 14 days (for example, an employee who has just returned from China, Italy or another area with an identified higher infection rate), the employer should not designate this or require the employee to take this leave as FMLA leave because it does not qualify as a serious health condition. OSHA Considerations Although there is no specific OSHA standard that addresses the Coronavirus and its spread, OSHA’s General Duty Clause – which requires employers to furnish workers with a workplace that is free of recognizable hazards that are likely to cause death or serious physical harm – always applies, as does OSHA’s Personal Protective Equipment (“PPE”) requirements, if applicable for your workplace.OSHA has currently identified certain workers as being at heightened risk for infections, such as those working in healthcare, deathcare, labs, airlines, waste management or work requiring travel to high risk areas such as China. OSHA has also provided general advice on how employers can best prepare to respond to COVID-19 in the workplace, including developing infectious disease preparedness and response plans (https://www.osha.gov/Publications/OSHA3990.pdf). However, this and other guidance may rapidly change as the virus spreads, so this is an important resource to continually monitor. Workers’ Compensation Considerations If an employee is diagnosed with the Coronavirus and an employer believes that he/she may have contracted it in the workplace or as a result of work performed in the course of employment (such as required business travel), employers should consult with their workers’ compensation administrators or insurers, or an attorney, to determine if the diagnosis could be considered a covered injury. Wage and Hour ConsiderationsNon-Exempt EmployeesNon-exempt employees are only paid for hours actually worked. Unless subject to a collective bargaining agreement, employers can generally reduce employees’ hours and/or rate of pay. However, if a company must make the difficult decision to reduce employees’ rate of pay, it should check if state law requires written notification of the change or requires a specific notice period prior to making the change.Exempt EmployeesAs a general rule, exempt employees are entitled to the same base weekly salary regardless of how many hours they work in a given week.There are two exceptions to this requirement:Full week reductions – If a salaried employee takes an entire week off of work, the employer is not required to pay for that week. However, the employee can perform no work during that week, including answering emails or taking calls, however brief. Unless an exempt employee can be completely relieved of work for the week, the employer must pay the employee. Employers can require employees to use PTO or vacation pay for a furlough period, so employers who provide PTO or vacation time and cannot relieve exempt employees from work entirely may require those employees to use PTO or vacation pay for non-working time and then pay them for actual time worked.Partial-week reductions – As a general rule, partial week reductions in pay are not allowed. The DOL and some courts have concluded that a partial week reduction may be permissible if the reduction is the direct result of a bona fide reduction in work (such as that resulting from an economic downturn) and the partial week reduction occurs infrequently. There is no bright-line rule for what qualifies as infrequently but courts have upheld reductions that occur one or two times a year.Pay Timing Requirements The potential for a pandemic does not relieve employers of the obligation to follow federal and state laws governing wage payment, including the timing of payments. This is yet another reason for employers to make sure they have a contingency plan in place and will be able to pay employees on time.Travel ConsiderationsWhile each employer has to determine its own position on travel, employers should pay close attention to the CDC and World Health Organization travel alerts and consider limiting all non business-critical travel. The U.S. is also taking steps to limit travel to and from Europe and while the scope of those restrictions are not yet clear, they may further impact business travel.Given that it is spring break in many parts of the country, employers may have multiple employees traveling for personal reasons. Employers can, and should, ask employees about the location of recent travel, even if the travel was personal in nature. If employees have traveled to areas where the virus is present or are designated as high risk areas, the employer should consider asking the employee to work from home for a 14 day period.Other KEY Considerations Develop a Communication Plan– Clear communication to employees regarding changes to workplace expectations or policies is crucial. Providing employees with information from trusted sources, such as the CDC, WHO or state public health agencies, will ensure that employees are receiving information that is consistent with directions it is receiving from you as an employer.Policies – Review policies governing absences, sick and/or other leave, and telecommuting. If your existing policies need to be altered or changed in order to address employees’ need for leave, consider updating your policies or creating a separate “emergency leave” policy that can be used now and in response to future pandemic/mass illness situations.Take stock of your physical workspace and determine if you are providing employees with the tools they need to remain healthy, such as soap or hand sanitizer and disinfectant. If employers do not have the necessary supplies or believe they may run out, they should identify what resources are available and how they intend to procure necessary items and supply them to employees.Talk to your cleaning service. If an employee is diagnosed with the virus, is your cleaning company aware of and equipped to handle any deep cleaning protocol that will be recommended or required by your relevant public health agency? If they are not, take steps to identify an alternative service option, in the event it becomes necessary.Test your technology now. While your employees may already have the ability to log in remotely, they likely do not all log in remotely at the same time. Does your server and system have the capacity to handle all employees working remotely? Testing now and identifying server or system issues will allow you to address those issues before you ask your employees to work remotely.Beware of potential discrimination as you are making decisions about requiring employees to take leave or work from home. In order to avoid discrimination claims, employers should treat all similarly situated employees the same and enforce any new or existing policies in a consistent fashion.Review your business continuity plan to ensure you are prepared to meet staffing and supply issues, as well as other unexpected operational demands or changes that may come up.Designate responsibility for the plan and ensure that responsible team members are monitoring the plan and updating and changing as necessary to respond to the rapidly changing nature of the epidemic.Identify trusted sources of information. Monitor guidance from the CDC, WHO and your county or city public health agency. If you are an employer in a regulated industry, identify and follow guidance from applicable regulatory authorities.https://www.cdc.gov/coronavirus/2019-ncov/index.htmlhttps://www.who.int/health-topics/coronavirushttps://www.linncounty.org/healthhttps://www.johnson-county.com/dept_health.aspx?id=4485Understand that things are changing rapidly. Several states and cities throughout the country have declared a public emergency. What this means for employers may depend on state law, as well as specific actions state or local governments may be taking. It is important that employers monitor these developments and are prepared to react to actions or declarations that apply to employers or the workplace.We are actively monitor this ongoing situation and will continue to provide updates as things change. Please feel free to contact Sara Sidwell, Mark Hudson or Terri Davis if you need additional guidance.
Terri C. Davis
Mark P. A. Hudson